This is a developing tort claim in addition to the torts reviewed here.

The first review of the proposed new tort of harassment was the Ontario Court of Appeal decision in 2019. ²

Notwithstanding the Court of Appeal decision in Merrifield, there have been inroads shown. The tort of internet harassment was recognized in a 2021 decision. ³

The defendant, Atas, conducted a series of campaigns of malicious lies against many parties with whom she presented grievances. These parties included her own legal counsel, a former employer and relatives of many of these persons. At the time of the hearing, these persons numbered as many as 150.

She had sent hate mail and made internet postings alleging professional incompetence, pedophilia, sexual criminality and even the abuse of a recently deceased family member.

Prior to this decision, the remedy available to such effected persons required the tort of intentional infliction of mental distress and/or defamation. The former mandated a test of mental suffering leading to a visible and provable illness. This issue of medically proven illness has been revised due to recent case law.

The court in this instance allowed a new tort of internet harassment. The test was set as follows:

1. The defendant maliciously or recklessly engaged in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;

2. The communications conduct was done with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff; and

3. The plaintiff suffered such harm, as intended by the defendant.

The critical distinction would appear to be the absence of a provable illness as a component of the test.  This is no longer required to prove the tort. In July of 2023, the Ontario Court of Appeal considered this very issue and concluded that medical evidence was not mandatory to the success of the tort: ⁴

However, this court’s decision in Prinzo held that the absence of medical expert evidence was not fatal. Likewise, in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, a unanimous court rejected the historical practice of requiring “claimants alleging mental injury to show that such injury has manifested itself to an expert in psychiatry in the form of a clinically diagnosed, recognizable psychiatric illness” (at para. 29). Instead, the court adopted the standard set in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9: compensable psychiatric injury “must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept”. Therefore, the testimony of lay witnesses in Saadati sufficed to demonstrate the requisite mental injury.

A further case in Ontario followed in June of 2021. The plaintiff had alleged online harassment of it and its principal, Shane Baghai. ⁵ The court agreed the use of the internet in a manner which was “outrageous in character, duration and extreme in degree, with the intent to coerce behaviour by causing fear, anxiety, emotional upset, or impugning the dignity of the plaintiff online” was actionable as the tort of harassment.

In the same case, Myers, J., noted the threat posed by internet harassment:

The law has recognized for many years the particular threat that internet harassment poses to a person’s reputation and well-being. In 2004, in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), at para. 34, Blair JA wrote:

…Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

In a subsequent case, the plaintiff made similar allegations of internet harassment. It was met with a defence of public interest commentary and also a submission that a corporate entity could not suffer such harm. Both motions failed. ⁶ The judge did note that the issue of the corporation as a plaintiff was not yet conclusively decided.

The court noted:

The evidence appears to establish that some of Ms. Dietrich’s TikTok videos served to impugn the reputation of 40 Days and that some of her videos and accompanying online communications served to encourage and rally others to do acts to negatively impact 40 Days’ activities. I am of the view that there are grounds to believe that the claim based on the tort of internet harassment has substantial merit.

These cases are difficult to reconcile with the Court of Appeal decision in Merrifield.

This issue was reviewed in February of 2023 by the Alberta King’s Bench in Ford v. Jivraj. The case before the court was the defence application to set aside a restraining order in favour of the plaintiff and further the plaintiff’s request for a contempt order against the defendant. The latter issue arose from an allegation that the defendant violated the prior restraining order due to an email sent by him to the National Post.

The plaintiff, Ford, had been nominated as the candidate for the United Conservative Party for the April 2019 provincial election. Certain adverse publicity, allegedly emanating from the defendant, had accused Ford of being a white nationalist and a racist which resulted in her abandoning her political aspirations.

Not related to the present litigation is a defamation action brought by Ford against the same defendant.

The immediate issue was whether the interim restraining order should be continued and whether the defendant was in contempt of the prior order. This latter order was made in the absence of the defendant, who asserted he did not receive notice of the application. The defendant then moved to set aside this order.

Before that application could be heard, Ford learned of a letter written, allegedly, by the defendant to the National Post. This resulted in the contempt motion.

The court in Ford agreed that the tort of harassment was a viable cause of action in these words:

In Alberta, Justice Inglis awarded damages against a defendant for claims including harassment in ES v Shillington, 2021 ABQB 739. I agree with her analysis and conclusions in that case and recognize that this new tort now has a toe hold in Alberta. Her award did not depend entirely on harassment.

[264]      I feel compelled to say that I am surprised by the pushback on the development of this potential tort. I fail to see what competing interests or rights need to triumph over an individual’s privacy interests, as opposed to their being a reasonable balance.

[265]      I recognize that freedom of speech is a fundamental value and right in Canada. Privacy is not mentioned in the Charter other than in the context of freedom from unreasonable search. The criminal law recognizes privacy rights. To date any privacy rights in the civil side of things have only been legislated. Any legislated privacy rights are relatively new.

[266]      Federally, PIPEDA, the Protection of Personal and Electronic Data Act, came into force in April 2000. In Alberta, PIPA, the Protection of Information and Privacy Act, came into force in March 2003.

[267]      There are already well-established limits to freedom of speech, such hate speech. Hate speech continues to be a criminal offence under section 319 of the Criminal Code.

[268]      Freedom of speech has never been extended to be a right to tell lies about someone. There have always been laws in Canada against defamation. These provide remedies for false statements that have harmed a person’s reputation. Canada has yet to imitate the free-for-all in the United States, where almost anything goes when publishing or spreading information on public figures. Even in the United States, actual malice takes away the protection otherwise offered by New York Times Co v Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964).

This marked the first recognition of the tort of harassment in Alberta.

Graesser, J. in Ford reviewed the Ontario cases above and noted that these cases were difficult to reconcile with Merrifield.

The decision of Feasby, J. in the subsequent Alberta decision noted below in April of 2023, made the same observation. ⁷:

The idea that there is no general tort of harassment but there is a narrower tort of internet harassment makes no sense.  If there is a tort of internet harassment but not a general tort of harassment, that means that the mode of harassment – using the internet – determines whether harassment is actionable.  While internet harassment is a problem, so too is old-fashioned low-tech harassment.

In the above decision, Feasby, J. agreed that the tort of harassment was one which should be allowed. The test he set was based on these tests, that the defendant:

(1)       engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;

(2)       that he knew or ought to have known was unwelcome;

(3)       which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and

(4)       caused harm.

The plaintiff was allowed the sum of $300,000 to compensate her for injury to her reputation, and a further sum of $100,000 for $100,000 in general damages for harassment.  Aggravated damages were also allowed in the sum of $250,000 for the additional harm caused by the defendant’s malicious conduct.

The court noted that there was no evidence provided of illness. Nonetheless, the court found that damages were suffered:

However, Ms. Nunn gave evidence that Mr. Johnston’s harassing conduct caused her to fear for her safety, the safety of her children, and that the harassment affected the way that she and her family lived their lives.  I am satisfied that Ms. Nunn’s emotional distress and the negative impact on her quality of life was serious and should be recognized and compensated through a significant award of damages.

A permanent injunction restraining the defendant from such conduct in the future was also allowed. It may be noted that the case was undefended.